What Does the Law Say About Laid Off Workers and Another Employee is Hired...

What does the law say about laid off workers and another employee is hired into their position while they are still laid off?

I just recently found out that an employee that was laid off about a month ago for lack of available work has been replaced by another employee recently hired into their position. Is this legal while the employee is still laid off and collecting unemployment?

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It could be legal based on employment at will law.
Probably not ethical/honest, if thwe laid off employee was not contacted to offer his/her old job back.
One must also remember that just because something is legal, it doesn't mean it's honest. My opinion.
Best,
Maurizio

This happens when the factory is laid off when the workers are on strike
and it is supported by Union. Factory give lay off to the workmen who are on strike.
In order to run the show it may lend to take new workmen in order to carry
on production if there are some urgent work orders. There should not be an
objection from the striking workmen and the Management also while continuing the
dialogue with the Workmen appoint new workmen purely on temporary basis. This is
quite legal and there should not be any objection from striking workmen. It also
create a sense of urgency for both striking union workers and the Management to
strike deal of an amicable agreement.

You will need to get a response from someone with specific understanding of Ohio legislation.

In my experience, it is legal most places to lay off an employee and subsequently hire an additional employee to fill the position the original person was laid off from - unless there is a collective agreement or company policy that prescribes otherwise. If (in some jurisdictions) the company saved money by laying off an employee rather than terminating, the employee may have further entitlement (e.g. termination pay) if the employee is not recalled within a certain period.

In the UK this would be potentially an unfair dismissal. If the work has diminished and an employee is laid off they are entitled to Gaurantee Pay (not full salary but laid down minimum sum) after a period should it continue the individual could invoke a redundancy situation with entitlements. However if they have been replaced while laid off that is either;

1 A dismisal in law as their contract would have in effect being terminated for no legal reason and had failed to follow any required procedures and therefore, subject to a qualifying length of service, they could claim unfair dismissal at employment tribunal or

2 They could argue a fundamental breach of contract as a result of the employers actions and claim a constructive dismissal if qualifying with length of service or a wrongful dismissal otherwise.

However this query is about employment in the USA and there they have a term 'employment-at -will', (which dosen't exist in the UK) and seems to be a get out clause to terminate at will without notice if there is just cause. So maybe this falls within that definition and if so then presumably it is legal in the USA!

Hi Penny, that is very interesting. When you refer to "employment-at-will", it does not just apply to termination for just cause, but termination for any reason. In North America, in non-union environments, with certain exceptions (e.g. Quebec) most terminations are not for just cause. The employer just has to comply with legal requirements applicable to minimum termination payments/severance and, if pursued, be ready to pay a legal settlement consistent with legal precedent, normally before the case goes to trial. Interesting subject!

Guess in terms of fairness its worse than I thought. I have a horrible suspicion our present government would like to introduce something similar in UK but hope that resistance as was seen in the early 1970's would prevail to stop it. Different times though so different measures and the Unions are just not as visible. Your comment about it happening only in non-union environments in USA speaks wonders for the case to remobilise unionism!

All I can say is: please RESIST with all your might.
Otherwise workers will have practically no more protection, and big corporations will dispose of workers has if thbey were refuse.
Resist, oppose, protest. Also for the good of future generations.

In our part of the world, the Philippines, this will be proof that the lay off or retrenchment was done in bad faith and is sure to be judged as illegal in a labor suit. Replacement by outsourced services however has been upheld by jurisprudence as a valid exercise of management prerogative.

I agree Penny. One of the arguments against the need for unions was the protection increasingly provided for employees and their rights by the government. If governments are moving away from protecting the rights of employees, it seems an incentive to unionize but even that may not be much protection if the government attempts also to disempower the unions. It sounds very regressive and too much like the early days of the Industrial revolution - maybe bring back child labour and let them pay for their own education!

I suggest your organization consult with a labor attorney who is well-versed in the laws of your state. In California, if someone is "laid off" due to lack of work, versus terminated (whether as an at-will term or just-cause term) there are specific regulations about assuring that the people selected for lay-off were done so using pre-defined, non-biased criteria, and that there is a procedure in place to re-call these employees if business conditions improve.

I applaud you in looking out for your organization’s potential liabilities before a greater problem possibly develops. Spending a little bit of money on a legal consultation now will be much better than attorney’s fees later down the road to try to fight a labor claim.

Further, releasing an employee due to “economic downturn” or “lack of work” may be an easier way to get the job done, but if it is being used to avoid telling the employee he is being let go for performance issues and no longer a match for the company, it is not a good path to take. Not saying this is what your organization did, but it is a common mistake made by uninformed employers.

Generally, if an employee is laid off and subsequently replaced with a new employee performing the same job it could be seen as constructive dismissal and open the employer to a law suit. I would question an employer's motives in this case as ultimately it will not save them money.

In a union environment, it would be fundamentally different as in the US if a union takes its members out on strike the employer can permanently replace that worker. Even if the strike ends, the employer has no obligation to displace the newly hired worker to bring back the striking employee. The striking employee must wait until a vacancy occurs and apply for the position if they are qualified.

In Canada, employers cannot replace striking workers. There are a number of conditions that must exist before it is allowed.

As for the specific question originating out of Ohio...seem above RE constructive dismissal....thanks...BigChair

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